Forthcoming Research

Pistorius’s Second Defence: Involuntariness

Murder is the intentional unlawful killing of another human being. Culpable homicide is the negligent unlawful killing of another human being.
You are entitled (justified) in law to intentionally lawfully (such as, in self-defence) kill another human being. There is no criminal liability for doing so. Whether you are under attack and entitled to act in self defence is judged objectively, on the facts. Pistorius is not making this claim. He accepts he acted unlawfully – he was not entitled to shoot at anyone that night.
In addition, you will be excused on a murder charge for unintentionally unlawfully killing another human being. This is a mental state defence – it denies the required guilty mental state.
For murder, you must intend to unlawfully kill. If you are mistaken, and genuinely believe you are acting lawfully (such as in private-defence (the technical name for the defence under which self-defence is located)), whereas you are not acting lawfully, you cannot be convicted of murder because you don’t intend to act unlawfully. To escape a conviction of culpable homicide this mistake must be reasonable – one which the reasonable person may make. But on a murder charge, it is enough, for an acquittal, if the accused was subjectively mistaken.
This defence (that you mistakenly thought you were entitled to act in private-defence) is known as “putative private-defence”. Until his testimony, this was Pistorius’s defence. I say “until his testimony”, because during his testimony, he seems to be claiming that he fired at the toilet door by accident. This is vastly different – a claim of “accident” amounts in law to a claim of involuntariness. The defence of involuntariness is well recognised – examples include movement during an epileptic seizure and sleepwalking. The essence of the defence is that your mind did not direct or control your conduct. His testimony seems to be raising this defence. In Tasha’s, the gun in his hand simply went off by itself. His claim is he did not pull the trigger. This is not, at least, at odds with what he has said before on this firearms charge because his testimony is, to my knowledge, the first indication of his defence on this charge.
However, on the murder charge, his defence, until his testimony, has been that he mistakenly thought he was entitled to act in self defence. This, as I’ve said, is a valid defence. Yet in his testimony, he seems to be changing his defence. He seems to be claiming that the discharge of his firearm was an accident or at the very least, that his conduct was not under the control of his mind. This is again a claim that the gun had gone off in his hands, but he had nothing to do with it. This seems to keep happening to Oscar.
A claim to involuntariness is a difficult one because our courts assume that ordinary conduct is voluntary. If you have done something, you need to lay a basis for a claim to have done so involuntarily – because the courts presume voluntariness (S v Henry 1999 SCA). There appears to be no basis for this claim – at least nothing in the evidence that I have seen so far. To be fair, the interpretation of “accident” as a claim to involuntariness is a technical one. It is understandable that an accused who is unfamiliar with the law and the legal implications of what he is saying may make this mistake. This is not, in my view, the problem. The problem is that he seems unclear as to what his defence is. Until his testimony his defence has been one of putative private defence. It is consistent with such a defence to say: I intended to kill – although I thought I was doing so lawfully; I intended to kill the person behind the door who I thought was an intruder and that I had to use lethal force. On a charge of murder, there is nothing inconsistent with innocence to intentionally kill someone – so long as you think you are doing so lawfully (such as in private defence). But if this is your defence, it makes no sense to deny having intended to kill anyone. An accused who does so would appear to be unclear about his/her defence.
For me this gives rise to a crucial question: Why would an accused be so unclear about his defence that it seems to change as he testifies on the stand?

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Prof Grant your comments and input on the channel have been valuable and insightful. Thank you.

You directed me to this article and, in conclusion ask the question as to why Oscar would be unsure of and change his defence on the stand. Is there not just one simple reason and that is he is lying and that, as his version or versions were destroyed during cross examination, he is left with no other choice but to develop a new version.

We find it laughable for him to suggest that the gun went off in his hand in both Tasha’s and in his bathroom yet this suggestion could possibly acquit him.

Surely anyone guilty of murder can use this excuse of involuntatiness as a way of beating a murder rap. It certainly is preferable to saying that he had an argument, flew into a rage and shot her and then, when it was all over, was deeply remorseful for what he had done.

To a layman like myself it appears that as time has gone on and as each defence appears to fail, a new defence is created. This time it is GAD.

Please enlighten me. I am really distressed for Reeva’s family that this man appears to be capable of getting away with murder.

Nothing to prove that they had any argument. I feel that an accident is the only logical answer. Oscar loved her. You can tell how perfect they were together. No reason to read anything else into it. Just like any other case the media will convict him. Only a guilty person needs a defense, Oscar will walk if justice is served and if it is not served he will be a victim all over again. Reeva was so beautiful and killing someone is not the way to get rid of them. She felt safe in his house otherwise she would not have gone there. Something went terribly wrong and no rational human being is going to kill his sweetheart on sweetheart day.

ONUS OF PROOF
When the accused raises a defence of automatism (such as Oscar saying he did not act voluntary) is it to him or to the State to prove such defence? Do we apply the same reasoning as in the delict case of Molefe? (therefore the State would have to prove voluntariness beyond a reasonable doubt)

The onus remains on the state to prove all requirements beyond a reasonable doubt. Accused need to raise only a reasonable doubt as to his/her voluntariness – but, to do so, accused must produce evidence to disturb the “natural inference” that courts draw that conduct is voluntary (S v Henry).
However, if defence is involuntariness because of mental illness or defect, this defence must be proved by the accused on a balance of probability – this position is Constitutionally precarious – likely to be overturned if challenged as unconstitutional.

Thank you, James, for your excellent posts, and for your involvement in this very informative comments thread, too. I am following the case from the UK, and am very grateful for your clear and detailed explanations. This is by far the best website I have found for in-depth information & discussions about the case. Please keep your articles coming!

OP’s testimony if true breaks the laws of physics:
OP claims that he pointed the gun in front of him with bent elbows towards the toilet door. He claims that him hearing “wood moving” triggered within him four shots from the gun. He claims there wasn’t time to think and he didn’t while the four shots were being discharged.

If this testimony was true there is no way one could match the evidence of the holes in the door without breaking the laws of physics: the force of the first gunshot would create a force directed down the arm to the bent elbows, this force would cause the elbows to move and bend further and cause the shoulders to pivot such that any further bullets would be directed in a vertical line below the first hole.

Any other pattern requires the arms to be in a locked position with straight elbows and / or thinking time to redirect the aim.